Tribal Law Journal

New Scholarship on Federal Restrictions on Tribal Customary Law

Matthew L.M. Fletcher

Concetta Tsosie de Haro has posted “Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts.” The paper was published in the Tribal Law Journal.

Here is the abstract:

This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.

New Student Scholarship on Understanding Tribal Courts and the Application of Fundamental Law

Matthew L.M. Fletcher

April Wilkinson has posted “A Framework for Understanding Tribal Courts and the Application of Fundamental Law: Through the Voices of Scholars in the Field of Tribal Justice,” forthcoming in the Tribal Law Journal, on SSRN.

Christine Zuni Cruz on Shadow Scholarship and Indian Law

Matthew L.M. Fletcher

Christine Zuni Cruz has posted her great paper, “ Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country “, published in the Tribal Law Journal, on SSRN.

Here is the abstract:

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Law’s electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista’s engagement of the Mexican government has been described as a “shadow war” for its engagement in conflict in “symbolic rather than real terms.” This early exploitation of the internet allowed the Zapatista to get their position across without having to rely on gatekeepers. The article describes how the Journal follows the same strategy in respect to tribal law. The important developments occurring in law at the tribal level require Indigenous Peoples’ awareness of trends among Indigenous peoples in the United States and across the world. Electronic communication has significantly facilitated this. The article concludes with a discussion of the limitations that challenge electronic communication among Indigenous Peoples.

Paul Spruhan on Blood Quantum at Navajo

Matthew L.M. Fletcher

Paul Spruhan has published “The Origins, Current Status, and Future Prospects of Blood Quantum as the Definition of Membership in The Navajo Nation” in the Tribal Law Journal. Here is the abstract:

In this article, the author discusses the origin of the Navajo Nation’s blood requirement. Mr. Spruhan examines the intended purpose of the quarter-blood quantum definition and the role of the Bureau of Indian Affairs. He reviews the current status, regulation, and recent attempts to change the quarter-blood quantum requirement. He discusses the future of the quarter-blood quantum requirement with respect to the Navajo Nation Council’s 2002 resolution known as the “Fundamental Laws of the Diné,” a resolution mandating the application of traditional law, customary law, natural law, and common law to the Navajo Nation Government and its entities. In this regard, Mr. Spruhan inquires as to the impact the “Fundamental Laws of the Diné” will have on the quarter-blood quantum requirement and future membership requirements.

Ezra Rosser on Tribal Customary Law

Matthew L.M. Fletcher

Ezra Rosser has posted “Customary Law: The Way Things Were, Codified” on SSRN. The Tribal Law Journal published the paper. Here is the abstract:

Frequently referred to as “customary law,” the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe’s judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place it has in relation to other sources of law from tribal statutes to state common-law. Furthermore, the differing treatment afforded customary law by separate tribal court systems in many ways is a reflection of the degrees of proof required by different courts to establish what is or is not a tribal custom.

Christine Zuni Cruz on Indigenous Law Scholarship and the Tribal Law Journal

Matthew L.M. Fletcher

Christine Zuni Cruz, EIC of the Tribal Law Journal, has published “Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country” in the Washburn Law Journal.

Here is an excerpt from the introduction:

This essay comments on the multi-layered experience of establishing an electronic law journal for the serious, scholarly treatment of the Indigenous (Chthonic) Legal Tradition and the law “of” Indigenous Peoples, as opposed to the nation-state law “concerning,” “about,” or “for” Indian tribes. It addresses the challenges to both the enterprise of seeking to write and publish about an oral legal tradition and its emerging modern, and written, offshoot in an electronic format, and of doing so in an academic and technological setting that contradicts and opposes the enterprise. It lays out the thought, the vision, the obstacles, and the concerns of the endeavor.